Common Law Claim

In Queensland workers’ compensation matters, a common law claim is a claim for damages arising from a workplace injury. It is distinct from a statutory workers’ compensation claim.

The statutory workers’ compensation scheme can provide benefits to an injured worker without requiring the worker to establish that their employer was negligent. A common law claim, by contrast, generally requires the worker to establish a legal basis for holding the employer responsible for the injury, commonly negligence.

Common law claims are governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which contains the framework for pursuing damages for workplace injuries in Queensland.

What is a common law claim?

A common law claim is a claim by an injured worker seeking damages for an injury for which their employer is alleged to be legally responsible.

In many workplace injury claims, this involves an allegation that the employer was negligent. For example, an issue may arise as to whether the employer failed to provide a reasonably safe system of work, appropriate equipment, adequate training, or reasonable precautions against a foreseeable risk.

It is not enough that an injury happened at work. To succeed in a common law claim based on negligence, the worker must establish the relevant legal elements, including breach of duty and causation.

How is a common law claim different from a statutory workers’ compensation claim?

Queensland’s workers’ compensation scheme distinguishes between statutory compensation and common law damages.

A statutory workers’ compensation claim can provide benefits following a work-related injury without requiring the worker to prove that their employer was negligent. Depending on the circumstances, statutory compensation may include weekly compensation for lost earnings, medical and rehabilitation expenses, and lump sum compensation for permanent impairment.

A common law claim is different. It is a claim for damages based on legal responsibility for the injury and generally requires the worker to establish negligence.

What must be established in a common law claim?

The precise issues depend on the circumstances, but a common law claim based on negligence will generally involve several related legal concepts.

Together, these issues are relevant to determining whether the employer is liable for damages arising from the workplace injury.

Common law claims for workplace injuries

The Workers’ Compensation and Rehabilitation Act 2003 (Qld) regulates the process for pursuing common law damages for workplace injuries in Queensland.

A worker will ordinarily need to satisfy particular requirements before commencing court proceedings for damages. The pathway can depend on matters including the worker’s permanent impairment assessment and the history of their statutory workers’ compensation claim.

Where permanent impairment is assessed, a Notice of Assessment may record the worker’s degree of permanent impairment, commonly referred to as DPI. A worker’s DPI can affect the process for pursuing common law damages.

In some circumstances, a worker may need to make a choice about a lump sum offer before pursuing damages. The requirements that apply depend on the individual circumstances of the claim.

What is a Notice of Claim for Damages?

A worker pursuing common law damages will generally be required to give the workers’ compensation insurer a Notice of Claim for Damages before commencing court proceedings.

The notice provides information about the claim, including the circumstances of the workplace injury, the allegations relevant to liability, and the damages being claimed.

This forms part of a pre-court claims process under Queensland’s workers’ compensation legislation.

What damages may be claimed?

Damages are intended to compensate for recognised loss resulting from the workplace injury. The types of damages that may arise depend on the worker’s circumstances and the available evidence.

• General damages for pain, suffering, and loss of amenities of life;
• Past economic loss;
• Future economic loss or loss of earning capacity;
• Medical and rehabilitation expenses;
• Care and assistance, where recoverable; and
• Other recognised losses arising from the injury.

Queensland workers’ compensation legislation contains specific rules governing the assessment of damages in workplace common law claims.

Statutory workers’ compensation payments may also be relevant when determining the damages ultimately recoverable.

What evidence may be relevant?

A common law claim may require evidence addressing both how the workplace injury occurred and the losses resulting from it.

• Witness statements;
• Incident and workplace investigation reports;
• Photographs and video footage;
• Workplace policies and procedures;
• Risk assessments and safety documents;
• Training and employment records;
• Medical records and expert medical evidence;
• Expert evidence concerning workplace systems or practices, where relevant;
• Employment and income records; and
• Other contemporaneous documents relating to the incident and resulting loss.

The evidence required depends on the issues in dispute and the circumstances of the particular claim.

Relevant Queensland legislation

Common law claims for workplace injuries in Queensland are principally governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The Act deals with matters including access to common law damages, permanent impairment assessments, the pre-court claims process, liability, and the assessment of damages.

The requirements that apply depend on the circumstances of the worker, the injury, and the history of the workers’ compensation claim.

Frequently asked questions